The Brief

• A family is suing Saint Anselm’s Abbey School in D.C., alleging their 12-year-old son was harassed due to his race and autism, with school administrators failing to intervene despite multiple complaints.
• The lawsuit claims the child faced racial slurs, disability mocking, and a physical attack by classmates, after which he was suspended for defending himself and then barred from re-enrolling.
• The family alleges the headmaster said they wouldn’t have accepted the child if they had known about his autism, despite being fully informed during the acceptance process.

WASHINGTON – A family is suing an elite private school in D.C., claiming their child was harassed because of his race and his disability – and that school administrators did nothing to protect him.

What we know:

The civil rights lawsuit was filed in D.C. Superior Court on Tuesday against Saint Anselm’s Abbey School – a private Catholic all-boys school in Northeast D.C. with fewer than 300 students.

The child – who was in sixth grade at the time – is only referred to as John Doe to protect his identity.

The complaint claims the harassment occurred in 2022, when the 12-year-old started at St. Anselm’s in the fall and eventually withdrew in the spring.

“The mother sent dozens and dozens of emails, naming names, naming times, naming places where the harassment was occurring,” said Alisa Tiwari, an attorney at Cohen Milstein. “She sent screenshots of text messages with these images so there’s good reason to believe the school did in fact know what is going on.”

The lawsuit claims the child was harassed relentlessly by classmates because he is Black and has autism.

“Students told him that they could call him the N-word whenever they wanted,” Tiwari said. The lawsuit also contains photos mocking his disability and race that were allegedly texted to the child by classmates.

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“He is a fully functional kid where I think if he had gone anywhere else would have flourished academically and socially,” Tiwari said.

The U.S. Supreme Court revived retirement plan mismanagement allegations against Cornell University, the Sixth Circuit restarted a yacht company’s suit against its health benefits administrator and American Airlines took a hit for emphasizing socially conscious investing in its 401(k) plan decisions.

Here are five important decisions that came down in Employee Retirement Income Security Act cases during the first half of this year.

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6th Circ. Makes Waves with Yacht Co. Ruling

A Sixth Circuit panel’s decision to revive a Michigan yacht company’s allegations that a third-party administrator mishandled out-of-network claims got noticed by benefits lawyers, given that employers are facing a rising number of lawsuits alleging excessive health fees.

A three-judge panel on May 21 reversed the February 2023 dismissal of Tiara Yachts Inc.’s suit against Blue Cross Blue Shield of Michigan alleging BCBSM overpaid health claims from out-of-state providers and then later claimed savings from collecting the overpayments, breaching fiduciary duties.

The panel concluded that a lower court erred in holding that the boat company’s allegations over the billing practices of its self-funded health plan administrator were outside the reach of ERISA. By showing BCBSM retained control over plan assets, the yacht company had plausibly alleged fiduciary duties under ERISA were implicated in its allegations that BCBSM overpaid providers, the panel found.

The decision has already appeared in supplemental briefing in other ERISA health fee litigation disputes, and has caught the eye of several plaintiffs-side attorneys, including Kai Richter, of counsel at Cohen Milstein Sellers & Toll PLLC.

“I think it is a significant win, and I think it should send a chill down the spine of anyone who’s profiteering from excess health care expenses,” Richter said.

A proposed class of home sellers urged a Missouri federal court to deny two brokerages’ second request to stay proceedings against them in a consolidated antitrust broker fees class action while they finalize a parallel settlement in what sellers have called “copycat” proceedings in Georgia.

Weichert Co., eXp Realty LLC and two affiliated entities had asked the court for a second time in May to stay proceedings against them while they await an October final approval hearing on a $44 million settlement they reached with home sellers in a separate Georgia case over fee inflation practices.

But the Missouri class argued Thursday that this request is premature, given their plans to challenge the adequacy of that settlement at an October class action fairness hearing.

“The evidence is overwhelming that the settlements are unfair, unreasonable, and inadequate and should not be approved,” the home sellers said. “Defendants should not simply assume that final approval will occur when the Hooper court considers plaintiffs’ evidence and objections at the October 28 hearing.”

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The consolidated class is represented by Alexander Aiken, Beatrice Franklin, Floyd G. Short, Marc M. Seltzer and Steven G. Sklaver of Susman Godfrey LLP, Robert A. Braun, Benjamin D. Brown, Sabrina Merold and Daniel H. Silverman of Cohen Milstein Sellers & Toll PLLC, Brandon J.B. Boulware and Jeremy M. Suhr of Boulware Law LLC, Eric L. Dirks, Michael A. Williams and Matthew L. Dameron of Williams Dirks Dameron LLC, Michael S. Ketchmark and Scott A. McCreight of Ketchmark & McCreight PC, Steve W. Berman, Rio S. Pierce, Jeannie Evans and Nathan Emmons of Hagens Berman Sobol Shapiro LLP, Julie Pettit of The Pettit Law Firm, Michael K. Hurst of Lynn Pinker Hurst & Schwegmann LLP and Frederic S. Fox of Kaplan Fox & Kilsheimer LLP.

General Motors can’t rely on an arbitration clause contained in a purchase agreement between a plaintiff customer and a dealership to arbitrate his claims alleging GM made cars with a defective transmission, after a Michigan federal judge ruled Friday the clause doesn’t cover GM, which wasn’t a party to the contract.

In a 13-page order, U.S. District Judge David M. Lawson of the Eastern District of Michigan issued an order denying in part GM’s motion to compel arbitration against Kenneth Wilkinson, one of several plaintiffs in a proposed class action accusing the automotive giant of knowingly selling cars with defective automatic transmissions.

The plaintiffs alleged GM never told existing customers about the issue and only addressed it if they came in and complained about the problem within the warranty, so many drivers had to pay out of pocket for repairs.

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“We welcome Judge Lawson’s well reasoned order. Despite GM’s multiple efforts to derail this litigation, we look forward to a jury hearing the overwhelming evidence about issues related to GM’s 8 speed transmissions,” plaintiffs’ co-counsel Ted Leopold of Cohen Milstein Sellers & Toll told Law360 in an emailed statement Friday afternoon.

The proposed class is represented by Cohen Milstein Sellers & Toll PLLC, Gordon & Partners P.A., Berger Montague PC, Capstone Law APC, The Miller Law Firm PC, Kessler Topaz Meltzer & Check LLP, Keller Rohrback LLP and Pitt McGee Palmer and Rivers PC.

A California-based lighting company and the managers of its employee stock ownership plan agreed to resolve a proposed class action claiming they mismanaged the $25 million sale of company stock that established the plan, according to a filing in federal court.

Linna Chea, B-K Lighting Inc., company executives, the Lite Star ESOP Committee and the plan’s trustee, Prudent Fiduciary Services LLC, said in a notice Tuesday that they’d reached a settlement agreement following a June 3 mediation session. The parties asked the court to give them 45 days to finalize the pact and file a motion for preliminary approval.

Chea filed her Employee Retirement Income Security Act lawsuit against the company and its ESOP managers in April 2023, claiming B-K Lighting’s founder, Douglas W. Hagen, set up the Lite Star ESOP in 2017 to cash out his stake in the company. Hagen died in 2021, and Chea’s lawsuit names as defendants his estate and his wife and son, both of whom worked for B-K Lighting.

According to Chea, B-K Lighting, Prudent Fiduciary and its owner, Miguel Paredes, structured a sale of all of Hagen’s stock, valued at about $25.27 million, using a loan to the ESOP to cover the amount. In addition to saddling the plan with immense debt, this inflated price failed to account for B-K Lighting’s declining sales and market share, caused by its failure to adapt to changes in the industry and adopt a digital marketing strategy, Chea claimed.

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Chea and the proposed class are represented by Daniel Feinberg of Feinberg Jackson Worthman & Wasow LLP, and by Michelle C. Yau and Caroline Bressman of Cohen Milstein Sellers & Toll PLLC.

Business groups want the justices to put a stop to overly broad class actions that include people without injuries. But a group of scholars have identified a procedural flaw that could derail a ruling in the case currently set to be heard this month.

The U.S. Supreme Court is set to consider a case that business groups are hoping will stem the tide of class actions they say are swamping corporate defendants in recent years. But a group of scholars have identified a messy procedural flaw in the case that could derail any ruling by the justices.

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But the plaintiffs and a group of federal court scholars say the Supreme Court should never have taken the case in the first place and are urging the justices to dismiss Labcorp v. Davis as “improvidently granted” without issuing a ruling on the merits.

“There is only one way for the Court to avoid issuing an advisory opinion in this case: dismiss the writ of certiorari as improvidently granted or for lack of jurisdiction,” wrote a group of law professors who specialize in issues of federal jurisdiction, including Berkeley Law Dean Erwin Chemerinsky, Marin Levy of Duke University School of Law, and Cardozo Law School professor Alexander Reinert

Inherent in the case is a “tangle of jurisdictional, prudential, and factual issues that leave no viable path to the question presented,” the scholars wrote.

The Supreme Court has already dismissed two other class action cases this term as improvidently granted involving securities fraud claims against Facebook and Nvidia.

The scholars and plaintiffs have identified what they consider to be two fundamental flaws in the Labcorp case.

The first is that the question before the justices-whether a court can certify a class that includes uninjured plaintiffs-does not apply to the facts of the case because the Ninth Circuit affirmed that the class included only injured plaintiffs.

“There is nothing to reverse,” the plaintiffs wrote. “Neither the district court nor the Ninth Circuit had any occasion to decide the question presented at all because neither found that there were any uninjured members to begin with.”

That is because Labcorp, the scholars wrote, appealed the wrong class definition.

Labcorp only filed its appeal over the district court’s original May 2022 definition of the covered class, which includes all legally blind individuals who were “denied full and equal enjoyment” of Labcorp’s services.

After Labcorp objected to that definition as an improper “fail-safe” class, the district court later amended the class definition to cover those “who, due to their disability, were unable to use the Labcorp Express” kiosks.

Ironically, Labcorp had originally objected to the May class definition as a “fail-safe class” that “jettison[ed] all ‘uninjured’ plaintiffs.” Labcorp argued that fail-safe classes are unfair because they tie membership in the class to the outcome of the merits of the litigation.

Now, Labcorp is largely making the opposite argument about the subsequent August definition; that it impermissibly includes uninjured plaintiffs in violation of Article Ill standing requirements, the scholars wrote.

The plaintiffs and scholars say the company failed to appeal that definition and instead only filed a notice of appeal from the original May class definition that has since been supplanted by the district court as a result of Labcorp’s own litigation decisions.

“Labcorp makes no argument that the May class definition fails Rule 23, much less that it presents the question this Court granted certiorari to resolve,” the scholars wrote. “To the contrary, Labcorp argued below that the May class definition does not implicate the question presented because it includes only individuals who were injured. In Labcorp’s own view, then, answering the question presented here would be a purely advisory exercise.”

Added the scholars: “Because of these fundamental, unavoidable, and intractable problems, the Court should dismiss the writ as improvidently granted or for lack of jurisdiction.” The brief was filed by Joseph Marc Sellers of Cohen Milstein Sellers & Toll.

A Maryland federal judge granted final approval Thursday to settlements worth nearly $400 million for poultry processing workers who claimed that the nation’s biggest chicken producers conspired to suppress their wages.

In an order, U.S. District Judge Stephanie A. Gallagher of the District of Maryland said there were no objections to the various settlement agreements, though more than 3,300 exclusion requests had been submitted by class members.

“The settlement agreements are fair, reasonable and adequate settlements for the settlement classes within the meaning of Federal Rules of Civil Procedure 23 and in accordance with the factors identified by the Fourth Circuit,” Judge Gallagher wrote.

Judge Gallagher also gave final sign-off to over $132.6 million in attorney fees for the three lead class counsel firms in the case: Cohen Milstein Sellers & Toll PLLC, Hagens Berman Sobol Shapiro LLP and Handley Farah & Anderson PLLC That figure represents 33.3% of the total $398 million settlement fund.

“Without the initiative, skill, experience and hard work of plaintiffs’ counsel, this case would never have been filed, let alone succeed,” the workers wrote in their attorney fees request last month. “No government enforcer was investigating these claims. No other firms were. The conspiracy was carefully hidden from the workers. Only plaintiffs’ counsel’s dogged nine-month investigation revealed the poultry industry’s conspiracy to suppress compensation.”

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The workers are represented by Cohen Milstein Sellers & Toll PLLC, Hagens Berman Sobol Shapiro LLP, Handley Farah & Anderson PLLC, Lockridge Grindal Nauen PLLP and Berger Montague.

InnovAge Holding Corp. and a class of stockholders have agreed to a $27 million settlement to resolve claims that the senior-health care company made misleading statements in an initial public offering that later caused stock prices to tank after a government audit exposed the falsehoods.

Lead plaintiffs — the El Paso Firemen & Policemen’s Pension Fund, San Antonio Fire & Police Pension Fund and Indiana Public Retirement System — filed a motion for preliminary approval on Monday, stating they reached a deal after arm’s length negotiations and three years of litigation.

According to shareholders, the settlement will provide class members with a “substantial percentage of the maximum realistically recoverable damages that could be established at trial,” and it is a meaningful and immediate recovery when considered against the risks of continued litigation.

“There were many risks to continued litigation, including hurdles to proving falsity, scienter and loss causation,” the motion states.

The motion also says class counsel from Cohen Milstein Sellers & Toll PLLC will seek an award of attorney fees of no more than 20% of the settlement fund, or roughly $5.4 million, as well as $800,000 in litigation costs and service awards for the lead plaintiffs.

The deal comes after a Colorado federal judge granted class certification in January to any person or entity who purchased or acquired InnovAge stock between May 11, 2021, and Dec. 22, 2021, or who acquired stock “in or traceable to” the company’s initial public offering.

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The shareholders are represented by Julie G. Reiser, Molly Bowen, Jan E. Messerschmidt, Brendan R. Schneiderman, Carol V. Gilden and Manuel J. Dominguez of Cohen Milstein Sellers & Toll PLLC and Cecil E. Morris and Adrian P. Castro of Fairfield & Woods PC.

Capital One Financial Corp. cannot ditch all of a proposed class action alleging its coupon-search browser extension steals commissions from social media creators who drive customers to affiliated merchants, a Virginia federal judge ruled, saying the plaintiffs plausibly alleged Capital One knew it was diverting their “rightfully earned” commissions.

In an order Monday, U.S. District Judge Anthony J. Trenga partially denied Capital One’s motion to dismiss an amended consolidated class complaint led by five content creators who say the Capital One Shopping browsing extension — which allows consumers to search for online coupon codes, compare prices and earn gift card rewards — is interfering with clicks on their affiliate links to steal their commissions.

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The plaintiffs in the instant suit are represented by Steven T. Webster of Webster Book LLP, Norman E. Siegel of Stueve Siegel Hanson LLP, E. Michelle Drake of Berger Montague PC, Douglas J. McNamara of Cohen Milstein Sellers & Toll PLLC, and James J. Pizzirusso of Hausfeld LLP.

William C. Smith & Co. will be stepping out of litigation accusing the company of using property management platform RealPage to conspire with other landlords and fix the price of rentals in the D.C. area, after agreeing to reform its business practices and shell out over $1 million.

D.C. Attorney General Brian L. Schwalb unveiled the settlement Monday, calling it a clear win and commending W.C. Smith for “putting an end to its anticompetitive practices and cooperating with my office to reach this agreement.”

The settlement does three main things. First, it obligates W.C. Smith to pay $1,050,000 to the D.C. government, which will go toward civil penalties, money to affected residents and legal fees. W.C. Smith must also change its rent-pricing practices to ban the use of software that “relies on any nonpublic or confidential data from other companies” and refrain from encouraging anyone else to use software like RealPage to set rent prices.

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The District of Columbia is represented in-house by Brian L. Schwalb, Will Stephens, Adam Gitlin, Mehreen Imtiaz and Ashley Walters of the D.C. Office of the Attorney General, and by Emmy L. Levens, Robert A. Braun, Zachary Krowitz, Laura K. Follansbee, Alexander J. Noronha and Aaron J. Marks of Cohen Milstein Sellers & Toll PLLC.